Although Toister had doubts about some aspects of the police account, she said she never envisioned the scenario that Perez now describes.
She could not imagine that, as Perez now says happened, police would have repeatedly shot an unarmed man and planted a machine gun on him to make him look like a would-be assassin.
At the time of trial, Toister believed that her client had probably blundered, armed, into what he believed had been an empty apartment and, to his surprise, encountered police who became frightened and shot him.
But she also thought that the police had probably made some kind of a mistake in the shooting and were trying to cover it up. She did not know what kind of mistake. But her suspicions were aroused when she noticed at trial that they seemed to be going out of their way to embellish their accounts to emphasize how difficult it would have been for Ovando to have just walked in.
The officers had previously described the building to police investigators, assigned to look into the officer-involved shooting, as "primarily vacant" during remodeling.
Toister found that description consistent with Ovando's contention that a friend of his lived there and that he sometimes visited the friend.
But at trial, the police described the building as empty. They said they had had to vault a 10-foot fence to get in.
Without much of a defense, Toister tried to exploit these new claims as contradictions.
But Judge Stephen Czuleger, a Deukmejian appointee and former federal prosecutor, ruled that she could not. Perhaps, he suggested, the officers had mentioned the new details to the investigators, but the investigators had not written them down.
Toister protested that the judge's ruling was unfair. She had asked for the officers' tape-recorded statements as part of the pretrial discovery process. But another judge who had handled motions in the case had not ordered the Police Department to turn over the recordings. All Toister had was the investigators' summaries. Toister had not made a fuss about this until Czuleger prevented her from using them to impeach the officers.
"Judge," she then said, "I'm at a loss. . . . This is the only report I have." But she neither pushed the issue nor demanded a mistrial, figuring, she said, that it would be pointless because Czuleger would not bend.
She tried an alternate tactic, questioning Officer Perez about why he had not mentioned the existence of a fence at Ovando's preliminary hearing.
But in response to a prosecution objection that her question was irrelevant, Czuleger cut her off again.
"Your Honor," she said, "This is very relevant."
"Counsel," he told her, "If I need help, I'll let you know."
"I'm just arguing," she said.
"I don't allow speaking objections. . . . Put a question."
"I'm sorry," Toister tried again. "I must be heard at sidebar."
But the judge declined to hear her, and told her again to ask the witness a question.
A little later, Toister asked for a delay to send an investigator to speak with the building manager.
But the prosecutor objected again, noting that she could have done that earlier.
"Your Honor, please," said Toister. "It was not until this [trial] started that I had any inkling there would be [an] issue whether or not the building was locked."
Backed into a corner, Toister disclosed to the judge that she had not done much of an investigation. She did not know where her own client lived. She had not even been to the building where the crime he was accused of committing had taken place.
"I asked [my] investigator to look at the apartment," she said. "She told me we could not."
In an interview, Toister said she still does not know why her investigator could not get in. She also said, in response to a question, that it did not occur to her to send her investigator back with a request to just nose around. "We rarely do that," she said. "Our investigators don't like doing that. They like to have a [specific person to go see.]"
In this case, Toister said, the only person she asked her investigator to interview was a potentially critical defense witness. He was a male friend of Ovando whose real name she did not know, but whose street name had been given to her by Ovando's teenage girlfriend. The girlfriend told Toister that she had been outside the building on the night Ovando was shot and had seen the male friend emerge. She said the male friend told her that police had come into the building, found him and Ovando, searched them and said they would let them go one at a time. Ovando, of course, came out crippled. The investigator reported that she was unable to find the male friend.
The continuance Toister had asked for was not granted.
Toister considered calling Ovando to the witness stand. She told the judge: "Ovando's testimony would be that he has been to that building before. He has a friend who lived in the building, and that on the day in question he has no recollection . . . because . . . he was shot in the head, arm, chest and back."